The Constitution in Play

Restoring the Lost Constitution: The Presumption of Liberty By Randy E. Barnett, Princeton University Press, 357 pages, $32.50

Except for conservative activists and a few academics, virtually no one pays attention to right-wing legal theories. But if, as promised, George W. Bush in a second term hands the federal judiciary over to acolytes of Justices Antonin Scalia and Clarence Thomas, conservative legal scholarship may prove an indispensable guide to where America is headed. The stakes involve far more than abortion rights and other high-profile legal issues.

To understand the constitutional agenda percolating on the right, a good starting point is Randy E. Barnett's accessible new book, Restoring the Lost Constitution. Barnett, who teaches law at Boston University, dissects the constitutional arguments (fashioned by lawyers and judges over the past two-thirds of a century) for the principles of governance that have prevailed since the New Deal.

Most Americans take these principles for granted: sovereignty of the national electorate, empowerment of Congress as the people's surrogate to address any problem of national importance, and active judicial intervention to protect individual and minority civil and political rights, with lower priority for property rights and other economic interests. For the past two decades, however, the legal intelligentsia on the right has been beavering away at strategies to discredit the governing constitutional regime, and Barnett provides a handy introduction to the ancestry and merits of these theories.

The title's reference to the "Lost Constitution" may seem simply like book-jacket hyperbole. But since at least the mid-1980s, right-wing lawyers have promoted the notion that landmark precedents of the preceding half-century could be shunted aside as unfaithful to an imagined "real" Consti-tution. According to the conservatives' "originalist" doctrine, constitutional interpreters today should fastidiously track understandings prevalent at the time that the Constitution was drafted and ratified. For example, in a 1995 opinion, Justice Thomas contended that if interstate "commerce" narrowly connoted "trade" between the states in 1789, the Supreme Court took a "wrong turn" in 1937 when it upheld broad New Deal laws on the ground that "agriculture" and "manufacturing" were part of commerce. Douglas Ginsburg, a federal judge and erstwhile Reagan Supreme Court nominee, came up with the formula that resonates most widely on the right in a 1995 article mourning the "Constitution in Exile."

Barnett's analysis makes clear that the restoration agenda requires reaching back even earlier than the New Deal era to rewrite settled law. He takes dead aim at the bedrock rule prescribed in 1819 by the first chief justice, John Marshall, that it is up to Congress, not unelected judges, to figure out how to manage the people's business, as long as the goal of Congress is constitutionally authorized and its means do not violate constitutionally protected rights. Marshall generously construed the clause that empowers Congress to enact all legislation "necessary and proper" to exercise any of its powers. "Let the end be legitimate," Marshall wrote, "let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."

For nearly two centuries, law students have memorized this passage as the foundation of a strong and flexible central government, meant to last, as Marshall said, "for ages to come." But Barnett contends that the great chief justice got it wrong. Echoing an argument made a decade ago by his Boston University colleague Gary Lawson, Barnett claims that "necessary" refers only to essential or optimal laws and that the word "proper" empowers judges to rule out (as "improper") laws inconsistent with "norms" implicit in (the conservative-libertarian version of) the Constitution.

Is this brash exercise simply a flight of academic self-indulgence? On the contrary, during the past decade the conservative majority on the Supreme Court has embraced precisely the scrutiny of means and ends recommended by Lawson and Barnett, as it has thrown out acts of Congress at a rate more than five times higher than that for the preceding two centuries. In invalidating the Gun-Free School Zones Act (in 1995) and the Violence Against Women Act (in 2001), the Court, in effect, followed the Lawson- Barnett approach. In both these landmark cases, Chief Justice William Rehnquist held that under the interstate- commerce clause, Congress cannot adopt measures to reduce the adverse effects of violence on commerce if these laws clash with postulates of "federalism" allegedly implicit -- but not actually written -- in the Constitution.

In the same vein, a five-member majority on the Court immunized state governments from lawsuits to redress employment discrimination against the elderly (2000) and the disabled (2001), holding that private lawsuits were not "congruent" and "proportionate" means to enforce the equal-protection guarantee of the 14th Amendment.

The bad news is not how far the Rehnquist Supreme Court has carried this approach to second-guessing Congress but how much further a Bush-appointed judiciary could extend that template and shred the fabric of environmental, labor, education, anti-discrimination, and other social programs.

Contrary to a common assumption, rightist jurisprudence is not monolithic. Barnett himself is a libertarian across the board, and his take on sexual privacy, among other matters, would not match the views of most conservatives. His account opens a window on conflicts and contradictions within conservative ranks. While Robert Bork and George W. Bush blast "liberal judicial activism" on such issues as sexual privacy and the death penalty, Barnett and other libertarians, the property-rights movement, and defenders of the Supreme Court majority's new "federalism" frankly condone judicial activism aimed at rolling back the regulatory state.

Chief Justice Rehnquist pledges to tether Congress tightly to powers specifically "enumerated" by the framers of the Constitution, while the religious right clamors for federal bans -- lacking any clear constitutional warrant -- on abortion, euthanasia, and stem-cell research. Justice Scalia touts the "originalist" credo, but he and his allies embrace doctrines undreamed of by the framers, such as the idea that the Fifth Amendment requires "just compensation" not only when the government expropriates property but also when regulations interfere with its profitable exploitation.

For contemporary liberals, the Constitution that Barnett and likeminded libertarians would like to "restore" is not entirely without appeal. As Barnett points out, in the Court's surprisingly strong June 2003 Lawrence v. Texas decision rejecting state anti-sodomy laws, Justice Anthony Kennedy eschewed the widely criticized argument that gay sex is protected by a "right of privacy" implicit in the Bill of Rights. Instead, Kennedy embraced a more far-reaching idea advanced by Barnett and derived from former Justice Arthur Goldberg and law professor Charles Black Jr. Observing that sexual intimacy is integral to personal relationships, Kennedy held that forming such relationships is part of the "liberty" expressly protected by the constitutional prohibition against denial of "life, liberty, or property" without due process of law.

Kennedy's opinion has triggered a ferocious reaction on the religious right precisely because it could put sexual freedom on a new, and firmer, constitutional footing. But in Barnett's view, Justice Kennedy's subtle shift of rationale could facilitate a revival of the old, pre-New Deal doctrine that "freedom of contract" barred labor laws and myriad other social and economic reforms.

Barnett is certainly correct that, as a philosophical matter, the framers placed a high value on protecting property rights. But only by torturing the legal text they drafted (and ignoring originalist insistence on the most plausible interpretation) can he support his specific claim that, say, the Clean Air Act should be struck down until authorized by a formal constitutional amendment. As Barnett cheerfully admits, his recipe for trivializing Congress scraps popular sovereignty as the basis of constitutional legitimacy, in effect deleting the framers' carefully chosen keystone, "We the People," from the preamble to the document.

Even the most devout Bush appointees are unlikely to carry their anti-government faith to so impolitic an extreme, but they could achieve similar results indirectly. While avoiding head-on challenges to the post-New Deal state, judicial conservatives have already devised monkey wrenches to cripple its machinery: byzantine "federalism" constraints, financially onerous "just compensation" requirements, limits on congressional authority to delegate policy-making authority to executive agencies or to impose conditions on states' acceptance of federal funds, and procedural obstacles to citizen enforcement of federal rights.

All the elements of Barnett's theories may not find their way into the law. But his vision of activist right-wing judges nullifying long-standing social and economic reforms is anything but merely academic. Ultimately, the voters and their representatives in Congress and the White House will decide whether this reactionary vision reshapes the nation for decades or stays between the covers of books and law reviews.

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